Athenian Constitution

Constitution

A constitution is a system for government, often codified as a written document, that establishes the rules and principles of an autonomous political entity. In the case of countries, this term refers specifically to a national constitution defining the fundamental political principles, and establishing the structure, procedures, powers and duties, of a government. Most national constitutions also guarantee certain rights to the people. Historically, before the evolution of modern-style, codified national constitutions, the term constitution could be applied to any important law that governed the functioning of a government.

Etymology

The term constitution comes from a Latin term denoting an important law, usually one proclaimed by the Roman emperor ("constitutiones principis"). Later, the term was widely used in canon law for an important determination, especially by the Pope.

General features

Generally, every constitution confers specific powers to an organization or institutional entity, established upon the primary condition that it abides by the said constitution's limitations.

The Latin term ultra vires describes activities of officials within an organization or polity that fall outside the constitutional or statutory authority of those officials. For example, a students' union may be prohibited as an organization from engaging in activities not concerning students; if the union becomes involved in non-student activities these activities are considered ultra vires of the union's charter, and nobody would be compelled by the charter to follow them. An example from the constitutional law of nation-states would be a provincial government in a federal state trying to legislate in an area exclusively enumerated to the federal government in the constitution, such as ratifying a treaty. Ultra vires gives a legal justification for the forced cessation of such action, which might be enforced by the people with the support of a decision of the judiciary, in a case of judicial review. A violation of rights by an official would be ultra vires because a (constitutional) right is a restriction on the powers of government, and therefore that official would be exercising powers he doesn't have.

When an official act is unconstitutional, i.e. it is not a power granted to the government by the Constitution, that act is null and void, and the nullification is ab initio, that is, from inception, not from the date of the finding. It was never "law", even though, if it had been a statute or statutory provision, it might have been adopted according to the procedures for adopting legislation. Sometimes the problem is not that a statute is unconstitutional, but the application of it is, on a particular occasion, and a court may decide that while there are ways it could be applied that are constitutional, that instance was not allowed or legitimate. In such a case, only the application may be ruled unconstitutional. Historically, the remedy for such violations have been petitions for common law writs, such as quo warranto.

History and development

Emergence of written laws

Excavations in modern-day Iraq by Ernest de Sarzec in 1877 found evidence of the earliest known code of justice, issued by the Sumerian king Urukagina of Lagashca 2300 BC. Perhaps the earliest prototype for a law of government, this document itself has not yet been discovered; however it is known that it allowed some rights to his citizens. For example, it is known that it relieved tax for widows and orphans, and protected the poor from the usury of the rich.

Early constitutions

In 621 BC, a scribe named Draco wrote the laws of the city-state of Athens; and being quite cruel, this code prescribed the death penalty for any offence. In 594 BC, Solon, the ruler of Athens, created the new Solonian Constitution. It eased the burden of the workers, however it made the ruling class to be determined by wealth (plutocracy), rather than by birth (aristocracy). Cleisthenes again reformed the Athenian constitution and set it on a democratic footing in 508 BC.

Aristotle (ca 350 BC) was one of the first in recorded history to make a formal distinction between ordinary law and constitutional law, establishing ideas of constitution and constitutionalism, and attempting to classify different forms of constitutional government. The most basic definition he used to describe a constitution in general terms was "the arrangement of the offices in a state". In his works Constitution of Athens, Politics, and Nicomachean Ethics he explores different constitutions of his day, including those of Athens, Sparta, and Carthage. He classified both what he regarded as good and bad constitutions, and came to the conclusion that the best constitution was a mixed system, including monarchic, aristocratic, and democratic elements. He also distinguished between citizens, who had the exclusive opportunity to participate in the state, and non-citizens and slaves who did not.

The Romans first codified their constitution in 449 BC as the Twelve Tables. They operated under a series of laws that were added from time to time, but Roman law was never reorganised into a single code until the Codex Theodosianus (AD 438); later, in the Eastern Empire the Codex repetitæ prælectionis (A.D. 534) was highly influential throughout Europe. This was followed in the east by the Ecloga of Leo III the Isaurian (740) and the Basilica of Basil I (878).

Japan's Seventeen-article constitution written in 604, reportedly by Prince Shōtoku, is an early example of a constitution in Asian political history. Influenced by Buddhist teachings, the document focuses more on social morality than institutions of government per se and remains a notable early attempt at a government constitution. Another is the Constitution of Medina, drafted by the prophet of Islam, Muhammad, in 622. It is said to be one of the earliest constitutions which guarantees basic rights to religions and adherents as well as reinforcing a judiciary process regarding the rules of warfare, tax and civil disputes.

The Gayanashagowa, or 'oral' constitution of the Iroquois nation, has been estimated to date from between 1090 and 1150, and is also thought by some to have provided a partial inspiration for the US Constitution.

In England, Henry I's proclamation of the Charter of Liberties in 1100 bound the king for the first time in his treatment of the clergy and the nobility. This idea was extended and refined by the English barony when they forced King John to sign Magna Carta in 1215. The most important single article of the Magna Carta, related to "habeas corpus", provided that the king was not permitted to imprison, outlaw, exile or kill anyone at a whim — there must be due process of law first. This article, Article 39, of the Magna Carta read:

No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land.

This provision became the cornerstone of English liberty after that point. The social contract in the original case was between the king and the nobility, but was gradually extended to all of the people. It led to the system of Constitutional Monarchy, with further reforms shifting the balance of power from the monarchy and nobility to the House of Commons.

Meanwhile, around 1240, the Coptic Egyptian Christian writer, 'Abul Fada'il Ibn al-'Assal, wrote the Fetha Negest in Arabic. 'Ibn al-Assal took his laws partly from apostolic writings and Mosaic law, and partly from the former Byzantine codes. There are a few historical records claiming that this law code was translated into Ge'ez and entered Ethiopia around 1450 in the reign of Zara Yaqob. Even so, its first recorded use in the function of a constitution (supreme law of the land) is with Sarsa Dengel beginning in 1563. The Fetha Negest remained the supreme law in Ethiopia until 1931, when a modern-style Constitution was first granted by Emperor Haile Selassie I.

In China, the Hongwu Emperor created and refined a document he called Ancestral Injunctions (first published in 1375, revised twice more before his death in 1398). These rules served in a very real sense as a constitution for the Ming Dynasty for the next 250 years.

Modern constitutions

The earliest written constitution still governing a sovereign nation today may be that of San Marino. The Leges Statutae Republicae Sancti Marini was written in Latin and consists of six books. The first book, with 62 articles, establishes councils, courts, various executive officers and the powers assigned to them. The remaining books cover criminal and civil law, judicial procedures and remedies. Written in 1600, the document was based upon the Statuti Comunali (Town Statute) of 1300, itself influenced by the Codex Justinianus, and it remains in force today.

One of the first modern constitutions was written by Pylyp Orlyk - hetman of Zaporozhian Host, it was written to establish a free Zaporozhian-Ukrainian Republic with the support of Charles XII of Sweden. This constitution is interesting because it established a democratic standard for the separation of powers in government between the legislative, executive, and judiciary branches. The Constitution also limited the executive authority of the hetman, and established a democratically elected Cossack parliament called the General Council. Following the Battle of PoltavaPylyp Orlyk spend most of the rest of his life in exile. His project for independent Ukrainian State never materialized, and his constitution never went into effect.

The Corsican Constitution of 1755 and the Swedish Constitution of 1772 were the first post-Enlightenment constitutions in Europe. All of the British colonies in North America that were to become the 13 original United States, adopted their own constitutions in 1776 and 1777, during the American Revolution (and before the later Articles of Confederation and United States Constitution), with the exceptions of Massachusetts, Connecticut and Rhode Island. The Commonwealth of Massachusetts adopted its Constitution in 1780, the oldest still-functioning constitution of any U.S. state; while Connecticut and Rhode Island officially continued to operate under their old colonial charters, until they adopted their first state constitutions in 1818 and 1843, respectively.

Principles of constitutional design

Government in some form goes back to when people were hunter-gatherers and lived in villages, and a common design consisting of a "council of elders," a "chief" who led hunting or war-making activities, and one or more "priests" who provided a religious guidance or sanction to various activities. As people began to establish nations or empires and lived in cities, this design evolved into monarchical or feudal patterns, with conquerors or strongmen claiming to rule by "divine right." Such rule led some thinkers to take the position that what mattered was not the design of governmental institutions and operations, but the character of the rulers. This view can be seen in Plato, who called for rule by "philosopher-kings.
Later writers, such as Aristotle, Cicero and Plutarch, would examine designs for government from a legal and historical standpoint.

The Renaissance brought a series of political philosophers who wrote implied criticisms of the practices of monarchs and sought to identify principles of constitutional design that would be likely to yield more effective and just governance from their viewpoints. This began with revival of the Roman law of nations concept and its application to the relations among nations, and they sought to establish customary "laws of war and peace to ameliorate wars and make them less likely. This led to considerations of what authority monarchs or other officials have and don't have, from where that authority derives, and the remedies for abusing such authority.

Along the way several writers examined how the design of government was important, even if the government were headed by a monarch. They also classified various historical examples of governmental designs, typically into democracies, aristocracies, or monarchies, and considered how just and effective each tended to be and why, and how the advantages of each might be obtained by combining elements of each into a more complex design that balanced competing tendencies. Some, such as Montesquieu, also examined how the functions of government, such as legislative, executive, and judicial, might appropriately be separated into branches. The prevailing theme among these writers was that the design of constitutions is not completely arbitrary or a matter of taste. They generally held that there are underlying principles of design that constrain all constitutions for every polity or organization. Each built on the ideas of those before concerning what those principles might be.

The later writings of Orestes Brownson would try to explain what constitutional designers were trying to do. According to Brownson there are, in a sense, three "constitutions" involved: The first the constitution of nature that includes all of what was called "natural law." The second is the constitution of society, an unwritten and commonly understood set of rules for the society formed by a social contract before it establishes a government, by which it establishes the third, a constitution of government. The second would include such elements as the making of decisions by public conventions called by public notice and conducted by established rules of procedure. Each constitution must be consistent with, and derive its authority from, the ones before it, as well as from a historical act of society formation or constitutional ratification. Brownson argued that a state is a society with effective dominion over a well-defined territory, that consent to a well-designed constitution of government arises from presence on that territory, and that it is possible for provisions of a written constitution of government to be "unconstitutional" if they are inconsistent with the constitutions of nature or society. Brownson argued that it is not ratification alone that makes a written constitution of government legitimate, but that it must also be competently designed and applied.

Other writers have argued that such considerations apply not only to all national constitutions of government, but also to the constitutions of private organizations, that it is not an accident that the constitutions that tend to satisfy their members contain certain elements, as a minimum, or that their provisions tend to become very similar as they are amended after experience with their use. Provisions that give rise to certain kinds of questions are seen to need additional provisions for how to resolve those questions, and provisions that offer no course of action may best be omitted and left to policy decisions. Provisions that conflict with what Brownson and others can discern are the underlying "constitutions" of nature and society tend to be difficult or impossible to execute, or to lead to unresolvable disputes.

Constitutional design has been treated as a kind of metagame in which play consists of finding the best design and provisions for a written constitution that will be the rules for the game of government, and that will be most likely to optimize a balance of the utilities of justice, liberty, and security. An example is the metagame Nomic.

Governmental constitutions

Most commonly, the term constitution refers to a set of rules and principles that define the nature and extent of government. Most constitutions seek to regulate the relationship between institutions of the state, in a basic sense the relationship between the executive, legislature and the judiciary, but also the relationship of institutions within those branches. For example, executive branches can be divided into a head of government, government departments/ministries, executive agencies and a civil service/bureaucracy. Most constitutions also attempt to define the relationship between individuals and the state, and to establish the broad rights of individual citizens. It is thus the most basic law of a territory from which all the other laws and rules are hierarchically derived; in some territories it is in fact called "Basic Law."

Key features

The following are features of democratic constitutions that have been identified by political scientists to exist, in one form or another, in virtually all national constitutions.

Codification

A fundamental classification is codification or lack of codification. A codified constitution is one that is contained in a single document, which is the single source of constitutional law in a state. An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten.

Codified constitution

Most states in the world have a codified constitution. Only three — Israel, New Zealand and the United Kingdom — have uncodified constitutions. The most obvious advantages of codified constitutions are that they tend to be more coherent and more easily understood, as well as simpler to read (being single documents). However, although codified constitutions are relatively rigid, they still yield a potentially wide range of interpretations by constitutional courts (see below).

Codified constitutions are usually the product of dramatic political change, such as a revolution . For example, the United States Constitution was written and subsequently ratified less than 25 years after the American Revolution. The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. This becomes evident when one compares the elaborate convention method adopted in the United States with the MacArthur inspired post war constitution foisted on Japan (see Constitution of Japan). Arguably the legitimacy (and often the longevity) of codified constitutions are tied to the process by which they are initially adopted.

States that have codified constitutions normally give the constitution supremacy over ordinary statute law. That is, if there is a conflict between a legal statute and the codified constitution, all or part of the statute can be declared ultra vires by a court and struck down as unconstitutional. In addition, an extraordinary procedure is often required to make a constitutional amendment. These procedures may involve: obtaining ⅔ majorities in the national legislature, the consent of regional legislatures, a referendum process or some other procedure that makes obtaining a constitutional amendment more difficult than passing a simple law.

Constitutions may also provide that very basic principles of the constitution may never be abolished, even by amendmend (for example, the German Federal Constitution provides that the provisions according to which the country has to be a democratic, federal, and social republic in which all state powers have to leave dignity of man inviolable, where rule of law prevails, and where souvereignty lies with the people, may not be altered ). In case that a formally valid amendment of a constitution infringes principles which are protected against any amendment, it forms so-called unconstitutional constitutional law.

The Constitution of Australia is an example of a constitution in which constitutional law mainly derives from a single written document, but other written documents are also considered part of the constitution. The Constitution of India is the longest codified constitution in the world. It is unique in that it incorporates codes from many other constitutions like those of Japan, Malaysia, and Anglosphere countries.

In states using uncodified constitutions, the difference between constitutional law and statutory law (i.e. law applying to any area of governance) in legal terms is nil. Both can be altered or repealed by a simple majority in Parliament. In practice, democratic governments do not use this opportunity to abolish all civil rights, which in theory they could do, but the distinction between regular and constitutional law is still somewhat arbitrary, usually depending on the traditional devotion of popular opinion to historical principles embodied in important past legislation. For example, several Acts of Parliament such as the Bill of Rights, Human Rights Act and, prior to the creation of Parliament, Magna Carta are regarded as granting fundamental rights and principles which are treated as almost constitutional.

Written versus codified

The term written constitution is used to describe a constitution that is entirely written, which by definition includes every codified constitution. However, some constitutions are entirely written but, strictly speaking, not entirely codified. For example, in the Constitution of Australia, most of its fundamental political principles and regulations concerning the relationship between branches of government, and concerning the government and the individual are codified in a single document, the Constitution of the Commonwealth of Australia. However, the presence of statutes with constitutional significance, namely the Statute of Westminster, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942, and the Australia Act 1986 means that Australia's constitution is not contained in a single constitutional document. The Constitution of Canada, which evolved from the British North America Acts until severed from nominal British control by the Canada Act 1982 (analogous to the Australia Act 1986), is a similar example.

The term written constitution is often used interchangeably with codified constitution, and similarly unwritten constitution is used interchangeably with uncodified constitution. As shown above, this usage with respect to written and codified constitutions can be inaccurate. Strictly speaking, unwritten constitution is never an accurate synonym for uncodified constitution, because all modern democratic constitutions consist of some written sources, even if they have no different technical status than ordinary statutes. Another term used is formal (written) constitution, for example in the following context: "The United Kingdom has no formal constitution." This usage is correct, but it should be construed to mean that the United Kingdom does not have a written constitution, not that the UK has no constitution of any kind, which would not be correct.

A constitution can be written but not codified. Codified would suggest written in one document. This means that a constitution that has a number of written sources is still written, but not codified.

Constitutions may provide that, for the purpose of clarity, they may be amended only by a law expressly amending or supplementing the Constitutional text itself (otherwise the relevant law would not enjoy the status of constitutinal law). The German Federal Constitution does expressly, and the constitutional tradition of the German federal states do at least in an implied manner, provide for this.

Entrenchment

The presence or lack of entrenchment is a fundamental feature of constitutions. Entrenchment refers to whether the constitution is legally protected from modification without a procedure of constitutional amendment. Entrenchment is an inherent feature in most written constitutions. The US constitution is an example of an entrenched constitution, and the UK constitution is an example of a constitution that is not entrenched.

The procedure for modifying a constitution is often called amending. Amending an entrenched constitution requires more than the approval of the national legislature, it requires wider acceptance. Sometimes, the reason for this is that the constitution is considered supreme law, such as according to the supremacy clause in the US constitution. Regardless of whether a constitution has this technical status, all states with an entrenched constitution recognise the difference between constitutional law and ordinary statutory law . Procedures for ratification of constitutional amendments vary between states. In a federal system of government, the approval of a majority of state/provincial legislatures may be required. Alternatively, a national referendum may be required in some states, such as in Australia.

In constitutions that are not entrenched, no special procedure is required for modification. In the small number of countries with un-entrenched constitutions, the lack of entrenchment is because the constitution is not recognised with any higher legal status than ordinary statutes. In the UK, for example, passing laws which modify sources of the constitution, whether they are written or unwritten, are passed on a simple majority in Parliament. The concept of "amendment" does not apply, as the constitution can be altered as easily in terms of procedure as any national law.

Distribution of sovereignty

Constitutions also establish where sovereignty is located in the state. There are three basic types of distribution of sovereignty: federal, unitary and confederal. A federal system of government will inevitably have a constitution that recognizes the division of sovereignty between the centre and peripheral/provincial regions of the state. The Canadian Constitution is an example of this, dividing power between the federal government and the provinces. A unitary constitution recognises that sovereignty resides only in the centre of the state. In the UK, the constitutional doctrine of Parliamentary sovereignty dictates than sovereignty is ultimately contained at the centre. Confederal constitutions are rare, and there is often dispute to whether so-called "confederal" states are actually federal. In a confederacy, sovereignty is located in peripheral regions/provinces and only limited power is granted to the centre. A historical example of a confederal constitution is the Swiss Federal Constitution.

Lines of accountability

In presidential and semi-presidential systems of government, department secretaries/ministers are accountable to the president, who has patronage powers to appoint and dismiss ministers. The president is accountable to the people in an election.

In parliamentary systems, ministers are accountable to Parliament, but it is the prime minister who appoints and dismisses them. In Westminster systems, this power derives from the monarch (or head of state in Westminster-style republics, such as India and the Republic of Ireland), a component of Parliament. There is the concept of a vote of no confidence in many countries with parliamentary systems, which means that if a majority of the legislature vote for a no confidence motion, then the government must resign, and a new one will be formed, or parliament will be dissolved and a general election called.

Façade constitutions

Italian political theorist Giovanni Sartori noted the existence of national constitutions which are a façade for authoritarian sources of power. While such documents may express respect for human rights or establish an independent judiciary, they may be ignored when the government feels threatened or entirely dishonoured in practice. An extreme example was the Constitution of the Soviet Union that on paper supported freedom of assembly or freedom of speech; however, citizens who acted accordingly were summarily imprisoned. The example demonstrates that the protections and benefits of a constitution are provided less through its written terms than through deference by government and society to its principles.

Constitutional courts

The constitution is often protected by a certain legal body in each country with various names, such as supreme, constitutional or high court. This court judges the compatibility of legislation with the provisions and principles of the constitution, which is termed "constitutionality." Especially important is the court's responsibility to protect constitutionally established rights and freedoms. In constitutions without the concept of supreme law, such as the United Kingdom constitution, the concept of "constitutionality" has little meaning, and constitutional courts do not exist.
A "constitutional violation" is an action or legislative act that is judged by a constitutional court to be contrary to the constitution, that is, "unconstitutional." An example of constitutional violation by the executive could be a politician who abuses the powers of his constitutionally-established office. An example of constitutional violation by the legislature is an attempt to pass a law that would contradict the constitution, without first going through the proper constitutional amendment process.

A constitutional court is normally the court of last resort, the highest judicial body in the government. The process of judicial review is then integrated into the system of courts of appeal. This is the case, for example, with the Supreme Court of the United States or Supreme Court of India. Cases must normally be heard in lower courts before being brought before the Supreme Court, except cases for which the Supreme Court has original jurisdiction. Some other countries dedicate a special court solely to the protection of the constitution, as with the German Constitutional Court. Most constitutional courts are powerful instruments of judicial review, with the power to declare laws "unconstitutional," that is, incompatible with the constitution. The effect of this ruling varies between governments, but it is common for the courts' action to rule a law unenforceable, as is the case in the United States. However, many courts have the problem of relying on the legislative and executive branches' co-operation to properly enforce their decisions. For example, in the United States, the Supreme Court's ruling overturning the "separate but equal" doctrine in the 1950s depended on individual states co-operation to enforce. Some failed to do so, prompting the federal government to intervene. Other countries, such as France, have a Constitutional Council which may only judge the constitutionality of laws before the ratification process.